Why The Kingpins Who Looted South Africa May Get Away With It

Scepticism is mounting that the alleged masterminds of South Africa’s biggest-ever embezzlement of state funds will ever be held to account.

A judicial commission set up to probe the looting, which ex-Finance Minister Pravin Gordhan estimates may have cost taxpayers more than R100bn, has been slowed by procedural issues and may need two years to finish.

And while a plethora of reports have implicated businessmen with close ties to former President Jacob Zuma, no one has been convicted so far.

Even if the commission led by Deputy Chief Justice Raymond Zondo gets to the bottom of what’s known as “state capture”, it has no powers to prosecute anyone.

Criminal charges would have to be pursued by the police and National Prosecuting Authority, which have been hamstrung by management upheaval and a shortage of manpower and skills to tackle complex cases.

“The fear is that there could be fatigue over state capture,” said Mzukisi Qobo, an associate professor at the University of Johannesburg and co-author of a study into how the systemic looting was orchestrated.

“The institutional mechanisms for enforcing the rule of law have been depleted. The Zondo commission, as necessary as it is, is insufficient to deal decisively with the legacy of institutional decay that the Zuma administration wrought on the country.”

While the commission was initially given six months to complete its work, Zondo said it wasn’t enough and secured an extension. Public hearings only began in August because the State Security Agency delayed the screening of the panel’s personnel.

It’s unclear whether the commission will hear testimony from Zuma, who was forced by the ANC to quit in February and replaced by his deputy, and ruling party leader, Cyril Ramaphosa.

Zuma has denied any wrongdoing and called the commission’s work politically motivated. He’s due to appear in court next month to face graft charges related to a 1990s arms deal.

Former anti-graft ombudsman Thuli Madonsela ordered the establishment of the probe two years ago. Her own investigation implicated the three Gupta brothers, who were friends with Zuma and in business with his son, in using their political connections to secure the appointment of allies to key state posts and win contracts.

“I’m concerned about the matter of state capture remaining unresolved for a long time as ill-gotten assets will be gone by then,” Madonsela said.
“If evidence has been lost it’s not due to the commission’s tardiness but the inertia that preceded it, compounded by the lengthy process of vetting its investigators.”

Witnesses who’ve appeared so far include former Deputy Finance Minister Mcebisi Jonas, ex-lawmaker Vytjie Mentor and Themba Maseko, who once headed the government communication service. They all testified how the Guptas pressured them to grant the family business concessions, with Zuma’s apparent backing.

“A lot of information has come out already and it’s a great process,” said Wayne Duvenhage, chief executive of civil-rights group Organisation Undoing Tax Abuse (OUTA).

“We are in this for the long run. If we have to get to some of these cases in three years’ time or five years’ time, so be it. Those who were responsible for state capture are not going to escape the transgressions and the law.”

Ajay Gupta, the eldest brother, denied the allegations in an affidavit filed in Dubai, where the family has a home. His lawyer, Mike Hellens, told the commission the Guptas won’t return to SA because they fear arrest by authorities they believe are reckless and incompetent. While SA concluded an extradition treaty with the United Arab Emirates last month, it hasn’t requested the Guptas’ arrest.

Ironically, the one victim the commission has claimed was an ally of Ramaphosa, Nhlanhla Nene, resigned as finance minister this month after testimony that he met with the Guptas at their home six times contradicted previous statements that he had encountered them only in public.

The hearings were postponed by a month on October 12 to allow all the people expected to be implicated in former Public Enterprises Minister Barbara Hogan’s testimony, including Zuma, to be notified.

The government should have considered establishing a special law-enforcement unit that could have taken immediate and decisive action against those responsible for state capture, according to Ebrahim Fakir, director of the Auwal Socio-Economic Research Institute, who said South Africans looking for accountability are likely to be disappointed.

“People will not get what they are hoping for from the commission,” he said.